Jharkhand High Court

Malti Devi vs Dharmendra Kumar Singh on 26 October, 2021

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           M.A No. 132 of 2020
      1. Malti Devi
      2. Sabita Kumari
      3. Lalita Kumari
      4. Gita Kumari
      5. Uttam Kumari
      6. Pinku Kumar                                 .... .... Appellant(s).
                                 Versus
      1. Dharmendra Kumar Singh
      2. Sajid Ahmad
      3. The Manager, Shri Ram General Insurance Company Ltd., Jaipur, Rajasthan
                                                     .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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For the Appellant(S) : Mr. Arvind Kumar Lall, Advocate For the Insurance Company : Mr. Ashutosh Anand, Advocate

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09/26.10.2021 Heard learned counsel for the parties.

2. By filing this appeal, claimants have prayed to enhance the compensation amount which has been awarded to them vide judgment dated 29th November, 2019 passed in M.A.C.C. No. 35 of 2018 by Learned Principal District Judge- cum- MAC Tribunal Palamau at Daltonganj.

3. Learned counsel for the appellants submits that there is cogent evidence in support of the income of the deceased which is Rs. 450/- per day. He submits that in presence of cogent oral evidence which is uncontroverted, the Tribunal could not have assessed the income of deceased as Rs.6000/- per month assuming the deceased to be a labourer. He submits that witnesses have categorically stated that the deceased was a mason and had good working experience as he was working since long. He submits that considering the oral evidence of A.W-2 the income of the deceased should have been considered as Rs. 450/- per day. He submits that Tribunal has also not awarded Future Prospects. He submits that interest @ 6% per annum has been awarded from the date of filing of the application which ought to have been @ 9% per annum.

4. Counsel for the Insurance Company submits that no documentary proof was produced to suggest that the deceased was a mason and was earning Rs.450/- per day. He submits that deceased was travelling at the footrest of the bus, thus the accident had taken place. So far as interest part is concerned he submits that Tribunal has rightly awarded 6% per annum which cannot be interfered with.

5. After hearing the parties and going through the lower court record, I find that the deceased was a mason and was aged about 40 years and he was earning Rs.450/- per day. He came to Nuadihabazar Bus Stand along with his younger brother, when he just boarded the bus bearing Registration No. JH 01AE 9699, the bus driver without issuing any warning started the bus, as a result of jerk, the deceased fell down from the bus and sustained serious injuries on his head resulting in his death. Before the Tribunal, Insurance Company appeared and filed their written statement thereafter the tribunal has framed five issues and after considering the oral and documentary evidence, assessed the compensation amount to the tune of Rs.8,80,000/-. Questioning the quantum assessed in the aforesaid award, the claimants have filed this appeal.

6. While I go through the records, I find that the age of the deceased was assessed to be slightly more than 40 years. The said assessment has not been disputed either by the claimants or by the Insurance Company. So it can safely be held that the deceased was thus more than 40 years of age.

7. So far as nature of accident is concerned, I find that it is consistent case of the claimants that while boarding the bus the deceased fell down, when the bus started with jerk as a result of which the deceased sustained grievous injury resulting in his death. This fact has been substantiated by A.W-3, who is the own brother of deceased and was accompanied the deceased at the time of accident. There is nothing on record to disbelieve the aforesaid version. Thus, I find that there is no fault on the part of the deceased in the accident which caused his death.

8. The Tribunal has applied 15 as the multiplier. Considering the age of the deceased, this Court feels that 15 is the correct multiplier which has been applied. Neither of the parties disputed the same.

9. Counsel for the appellants has submitted that no compensation on account of Future Prospects has been awarded in the instant case. After going through the award, I find that the Tribunal has not awarded any amount on account of Future Prospects. The Hon'ble Supreme Court in the case of National Insurance Company Limited Vrs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 has held that in case of death of self- employed, the claimants are entitled to get benefit of Future Prospects and the compensation amount should be awarded accordingly. It is an admitted fact that age of the deceased was slightly above 40 years that being so and also considering the fact that he was a mason i.e self-employed,

increase of 25% of compensation has to be granted on account of Future Prospects.

10. Now the main contention is what would be the income of the deceased. The Tribunal has assessed the income of the deceased to be Rs. 6000/- per month considering him to be a labourer. In this contest, I have gone through the evidence adduced by the parties. A.W-1 is Chalitar Sao. He in his evidence he has categorically stated that the deceased was working as a mason. On the aforesaid fact his evidence could not be demolished in cross-examination. A.W-2 Keshwar Bhuiyan is a person who has worked with the deceased. He has stated that deceased was working as a mason and this witness had several chances to work with him. At paragraph no.4 of the deposition of A.W.2 he has categorically stated that in the year 2017 the deceased was earning Rs.450/- per day and he was an experienced mason. On this point his evidence could not be demolished during cross-examination. The Insurance Company did not adduce contrary evidence on the income and occupation of the deceased. Thus, I find that there is consistent evidence that the deceased was a mason and was earning Rs. 450/- per day. The Tribunal has assumed that the deceased was a labourer and he was earning Rs. 6000/- per month. In view of the oral evidence of A.Ws-1 & 2, the Tribunal could not have presumed the income of the deceased to be Rs. 6000/- per month. Thus, this Court hold that in view of the positive evidence led by the claimant the deceased was earning Rs. 450/- per day. Thus, the monthly income of the deceased should be calculated considering 26 working days, which would be Rs. 450/- x 26 days, which will be Rs.11,700/- only per month.

11. So far as interest is concerned, I find that Tribunal has awarded @ 6% per annum from the date of filing of the application, I find no illegality committed in awarding 6% interest.

12. Now considering what has been held above, the compensation amount needs to be recalculated which is as under :-

Rs. 11,700 x 12 x 15(multiplier)= Rs.21,06,000/-

Rs.21,06,000/- - 1/4th (Dependency) = Rs.15,79,500/- Rs.15,79,500/- + 25% (Future Prospect) = Rs.19,74,375/- Rs.19,74,375/- + Rs.70,000/- (Conventional Head) = Rs. 20,44,375/-

13. Thus in view of this Court the just and fair compensation in this case would be Rs.20,44,375/-. The Tribunal has awarded Rs.8,80,000/- which according to the parties have already been paid. Thus the balance amount would be Rs.11,64,375/- This balance amount will carry interest @ 7% per annum from the date of the award passed by the Tribunal i.e 29.11.2019 till the balance is paid to the claimants. The Insurance Company is directed to pay the balance amount to the claimants preferably within a period of ten weeks.